[2017] KEHC 9304 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION NOMINATION APPEAL NO. 30 OF 2017

BETWEEN

JUBILEE PARTY OF KENYA................APPELLANT

AND

FARAH MOHAMED MANZOOR........RESPONDENT

(Being an Appeal from the Judgment and Decree of the Political Parties Disputes Tribunal of Kenya at Nairobi made on the 27 July 2017 by Hon. KyaloMbobu, James Atema, Hassan Abdi and Dr. Adelaide Mbithi in Complaint No. 334 of 2017)

JUDGMENT

[1] The appeal herein was brought by Jubilee Party of Kenya, the Appellant, from the decision of the Political Parties Disputes Tribunal that was delivered on the 27 July 2017in favour of the Respondent in Complaint Number 334 of 2017. The Respondent, Farah Mohamed Manzoor, had complained that, whereas, as a party member, she did apply to be considered for direct nomination to the Senate by the Appellant, and whereas her application had been approved, for reasons not known to her, her name was later removed from the Party List that was forwarded to the Independent Electoral and Boundaries Commission, IEBC. It was therefore her contention that the Appellant had violated her rights and the rights of the minority Asian Kenyans, whose interest she was to represent in the Senate. She also alleged that she had been discriminated against by the Appellant.

[2] That Complaint, dated 20 July 2017, was heard by the Political Parties Tribunal (hereinafter the Tribunal) on the 24 July 2017 and a Judgment rendered on the 27 July 2017,in which the Tribunal found the Complaint to be meritorious. In its Judgment, the Tribunal held, inter alia, that:

"...women such as the complainant are not only marginalized on the basis of their gender as women but due to the intersectionality of identities [and] are similarly marginalized on the basis of other overlapping or intersecting social identities. These are the special interests that Article 98 speaks to. In the claim before us, by nominating the complainant the Respondent would be addressing not just ethnic, religious, linguistic and cultural identity. Therefore, in so far as the Respondent's Party list allocates two nomination slots to the majority communities of Kalenjin, Kikuyu and Kisii and one each to the equally populous Kamba and Luo Communities at the expense of the minority Asian Kenyans, the same is unlawful and cannot stand scrutiny. That list does not reflect the regional and ethnic diversity of the people of Kenya as required by Article 90(2)(c) of the Constitution of Kenya..."

[3]Accordingly, the Tribunal, by way of relief, made the following orders:

[a] A declaration be and is hereby issued to the effect that the Respondent's Party List to the Senate does not reflect the ethnic diversity of the people of Kenya and is therefore unlawful, null and void;

[b] The Respondent is hereby directed to reconstitute its Party List in compliance with Article 90(2)(c) of the Constitution of Kenya;

[c] The Respondent is further directed as a matter of priority to include the Complainant's name in the first slot in light of her minority status.

[d] The Respondent is directed to afford a hearing to and to supply all affected persons with the reasons for any decision made in complying with the order in [b] above;

[e] There is no orders as to costs in view of the nature of the dispute.

[4]The Appellant, being aggrieved with the Judgment and Decree of the Tribunal, filed this Appeal on 16 August, 2017 on the following grounds:

[a] The Tribunal erred in law and in fact in ordering total reconstitution of the Party Lists of nominees to the Senate;

[b] The Tribunal erred in law and in fact in failing to appreciate the provisions of the Constitution of Kenya, 2010, the Independent Electoral and Boundaries Commission Act, No. 9 of 2011, the Elections Act, No. 24 of 2011, the Elections (General) Regulations, 2012, the Elections (Party Primaries and Party Lists) Regulations, 2017, with respect to compiling and submission of Party Lists in ordering reconstitution of the Party List of nominees to the Senate without taking into account the adverse implication of their orders to other members of the Appellant who were never parties to the proceedings before the Tribunal;

[c] The Tribunal erred in law and in fact in failing to take into account the Appellant's response;

[d] The Tribunal failed to take into account the fact that the nominees submitted by the Party had met all the relevant criteria and were selected in a fair and credible process in accordance with the law obtaining;

[e] The Tribunal erred in law and in fact in failing to take into account the fact that the Appellant complied with the law and regulations in constituting the Party List;

[f] The Tribunal erred in law and in fact in ordering the Appellant to reconstitute the Party List in a particular manner while it had no jurisdiction to do so;

[g] The Tribunal erred in law and in fact in failing to appreciate the fact that all interested categories including special interest groups were catered for in the List submitted by the Appellant to the IEBC as provided by law.

[5] It was on the basis of the grounds aforestated that the Appellant prayed for orders that the entire Judgment and Decree of the Tribunal be set aside and that the costs of this Appeal and the costs incurred before the Tribunal be awarded to the Appellant. Due to the urgency of the matter, the requirement for the preparation and service on Notice of Appeal and Record of Appeal were dispensed with as the parties pursued an interlocutory application for stay. However, in the interests of justice, the Court called for the original record of the proceedings before the Tribunal for perusal.

[6]The appeal was argued orally by Learned Counsel herein. Mr. Rono for the Appellant wholly adopted his arguments in support of the interlocutory application for stay of execution and thereby reiterated his contention that the Tribunal assumed jurisdiction to hear and determine the Complaint, when it did not have such jurisdiction, in that the parties did not first exhaust the Party's internal dispute resolution mechanism before the Complaint was filed. He added that the Tribunal did not take time to consider the legal provisions as regards party nomination, such as Articles 90 and 98 of the Constitution pursuant to which the Party Lists were submitted to and revised by IEBC before the final compliant Lists were resubmitted. Counsel therefore posited that, under those circumstances, any disputes arising would fall under the jurisdiction of the IEBC Disputes Resolution Committee and not the Tribunal. In support of this argument, Counsel relied on Election Nomination Appeal No. 22 of 2017: Jubilee Party of Kenya vs. Mohamed Abdikadir Salah and National Gender & Equality Commission vs. IEBC & Another [2013] eKLR.

[7] It was further the submission of Mr. Rono that the orders that were granted by the Tribunal were also vague and incapable of implementation, in that it was not specified how the List was in contravention of the Constitution or the statutory provision. In addition thereto, Counsel for the Appellant raised the issue that to revise the List in the manner proposed would adversely affect third parties who had not been accorded a hearing as envisaged by Article 47 of the Constitution. Counsel also relied on Election Nomination Appeal No. 17 of 2017: Jubilee Party of Kenya vs. Catherine Jeptoo Mapingwony and Election Nomination Appeal No. 18 of 2017: Jubilee Party of Kenya vs. Stella Rotich & Another to buttress his arguments. He urged that the appeal be allowed in the terms set out in the Memorandum of Appeal herein.

[8]Counsel for the Respondent, Mr. Kariuki, opposed the appeal. He similarly adopted the submissions he had earlier made herein to the effect that before moving to the Tribunal, the Respondent had filed Appeal No. 571 of 2017 for consideration by the Appellant's Appeals Board, and that it was the Appellant that frustrated the Respondent's efforts at internal dispute resolution. Section 40of the Political Parties Act was cited by Counsel to support his argument that the Tribunal was properly clothed with jurisdiction to hear and determine the Respondent's Complaint as it did; adding that by the time the Respondent moved to the Party's Appeals Board, IEBC had not been seized of the matter.

[9] It was further the contention of Mr. Kariuki that the Appellant, in coming up with the second List, failed to observe the provisions of Articles 90(2)(c)and177of the Constitution,in that the List did not reflect the face of Kenya. He took issue with the fact that the List had names of nominees from the majority groups who, in any case, have numerous elected members and urged for the dismissal of the appeal, adding that the Respondent had legitimate expectation that she would be nominated, her name having been including in the first List.

[10] I have carefully considered the grounds set out in the Memorandum of Appeal in the light of the submissions made herein by Learned Counsel. I note that, in his submissions Counsel for the Respondent urged the Court to find that its jurisdiction had not been properly invoked for the reason that there is no Record of Appeal filed or Notice of Appeal served on her. I however have no hesitation in rejecting that argument granted the urgency with which this matter was filed. Moreover, as has been pointed out herein above, the Court called for perusal the original record of the Tribunal. Accordingly, no prejudice has been occasioned by the failure to serve Notice of Appeal or to file and serve a Record of Appeal.

[11] There is therefore no dispute that the Respondent herein was an active registered member of the Appellant Party, or that she was one of the candidates who participated in the Appellant's party primaries. She is from the Asian Kenyan community, and after coming 4th in the party primaries, she was urged by her community to apply for nomination to the Senate. The parties are in agreement that she was among the successful applicants to make it to the Party List. That List was however revised and the effect of the revision was that the Respondent's name was dropped for reasons unknown to her. No doubt the Respondent was unhappy to learn of this state of affairs and this is what prompted her appeal to the party Appeals Board and to the Tribunal. The parties are in agreement that the appeal to the Appeals Board was not pursued to conclusion. The Respondent now contends that her efforts in that regard were thwarted by the Appellant and its organs.

[12] Given the foregoing, the issues for determination can be said to be the following two;

[a] Whether the Tribunal had the jurisdiction to entertain the Respondent's Complaint as it did; and

[b] Whether, in arriving at its decision, the Tribunal took into account the applicable law and the response offered by the Appellant.

[13] With regard to the applicable law,Article 98 of the Constitutionstipulates that:

"(1) The Senate consists of --

(a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency;

(b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate elected under clause (a) in accordance with Article 90;

(c) two members, being one man and one woman,representing the youth;

(d) two members, being one man and one woman, representing persons with disabilities; and

(e) the Speaker, who shall be an ex officio member

(2) The members referred to in clause (1)(c) and (d) shall be elected in accordance with Article 90. "

[14] Article 90 of the Constitution, on the other hand provides that:

"(1) Elections for seats in Parliament provided for under Article 97(1)(c) and 98(1)(b), (c) and (d) ... shall be on the basis of proportional representation by use of party lists.

(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-

(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;

(b) except in the case of the seats provided for under Article qualified candidates and alternates between male and female candidates in priority in which they are listed; and

(c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya."

[15] It is manifest from Article 90(2) above that it is the responsibility of IEBC to supervise the preparation of Party Lists and that this obligation was discharged by IEBC. It was thus the contention of the Appellant that if the Respondent was aggrieved by the process and outcome relative to the Party List for the Senate, then the dispute could only be resolved by the Dispute Resolution Committee of IEBC; and therefore that the Tribunal had no jurisdiction in the matter. Counsel for the Appellant relied on Articles 88(4)(e) of the Constitution and Section 74(1) of the Elections Actas read with Regulation 54 of the Elections (General) Regulations, as well as the decision of Wakiaga, J in Election Nomination Appeal No. 22 of 2017 in which the Learned Judge held that:

"Article 88(4)(e) and Section 74(1) Election Act give the IEBC jurisdiction to settle election disputes including disputes relating to or arising from nomination but excluding election petitions and disputes subsequent to the declaration of election results. It therefore follows that once IEBC accepted the party list under Regulation No. 26 any dispute arising therefrom should have been referred to the IEBC Dispute Resolution Committee and not the Political Parties Disputes Tribunal. I therefore find and hold that the PPDT did not have jurisdiction to entertain the dispute herein as it could only exercise jurisdiction on an election dispute that falls within its exclusive jurisdiction..."

[16] I have given due consideration to the said authority as well as the other persuasive authorities that were cited by Learned Counsel herein but would respectfully differ from the conclusion reached above. In my careful consideration there is a distinction that can be drawn between nomination for elections in its general sense for which IEBC has general charge, and nomination to the Party List for which the political parties have control pursuant to Regulation 55 of the Elections (General) Regulations, granted that they are done pursuant to the party rules. Accordingly, when it comes to the compilation of Party Lists, the role of IEBC is not that of "conducting" that process, but is limited to a supervisory role. Indeed, Section 34(6A) of the Elections Act recognizes that:

"Upon receipt of the party list from a political party under subsection (1), the Commission shall review the list to ensure compliance with the prescribed regulations and--

(a) issue the political party with a certificate of compliance; or

(b) require the political party to amend the party list to ensure such compliance failing which the Commission shall reject the list."

Thus, any dispute arising from that process would rightly fall within the jurisdiction of the PPDT as a dispute between a member and his/her party, provided of course that the party's internal dispute resolution mechanism process has first been exhausted.

[17] I find succour in this viewpoint in the decision of the three Judge Bench in the National Gender and Equality Commission vs. Independent Electoral and Boundaries Commission & Another [2013] eKLRin which the Court held thus:

"We therefore find and hold that Article 90(2) does not deal with elections leading to the constitution of party lists nor concern itself with the manner in which parties come up with the names on the lists. How the election of persons on the list is carried out is a matter entirely within the mandate of the respective political parties. It is for this reason that regulation 55(1) of the General Regulations provides that, "The party list contemplated under regulation 54 [the lists under Article 90(1) of the Constitution] shall be prepared in accordance with the rules of the political party...Section 34(6) of the Elections Act, 2011 specifically provides that, "The party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned." This role does not extend to directing the manner in which the lists are prepared as these are matters within the jurisdiction of the parties but in considering the lists, the IEBC must nevertheless be satisfied that the lists meet constitutional and statutory criteria. We would hasten to add that in the event there is a dispute in the manner in which the parties conduct themselves in conducting their internal elections then recourse may be had by the aggrieved party members, inter-alia to the Political Parties Disputes Tribunal established under section 39, Part VI of the Political Parties Act, 2011 or to the High Court in appropriate circumstances."

[18]It is my considered view thereforethat the Tribunal was the appropriate option for the Respondent to go to for redress, granted the provisions ofSection 40(1) of the Political Parties Act. Nevertheless, it was incumbent upon the Tribunal to ensure that before invoking its jurisdiction, the Respondent had complied with the requirements ofSection 40(2)of thePolitical Parties Act. That provision states as follows:

(2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

[19] It is instructive that the above provision is couched in mandatory terms. It is therefore manifest that since the Respondent had not exhausted the Party's internal dispute resolution mechanism and obtained a determination, the PPTD had no jurisdiction to entertain her Complaint. It is needless to say that jurisdiction is everything and without it the Tribunal was powerless. In Owners of Motor Vessel Lillian S vs. Caltex Oil (Kenya) Ltd [1989] KLR 1,Nyarangi, JA, made this point thus:

"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

[20]In the light of the foregoing, it would be pointless considering the merits of the impugned Judgment, granted that the same is null and void for want of jurisdiction. Accordingly, the Appeal succeeds and is hereby allowed. I would thus set aside the Judgment and Decree of the Political Parties Dispute Tribunal delivered on 27 July 2017,with no order as to costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF SEPTEMBER, 2017

OLGA SEWE

JUDGE